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Maintaining the balance Producers struggle with cultural preservation requirements

by Wyoming Livestock Roundup

“We’re no stranger to oil and gas development in Converse County,” says Wyoming State Sen. Brian Boner of Douglas. “Development has been going on since the 1970s.”

However, recently, development has been hindered or stopped altogether as a result of the Bureau of Land Management’s (BLM) interpretation of Section 106 of the National Historic Preservation Act, which requires consultation with Native American tribes whenever artifacts that may be of Native American origin are found at or near development sites.

“My constituents are interested in ensuring that there are no direct impacts to Native American sites from oil and gas development,” Boner says, adding that new interpretations, however, highlight view-shed and indirect impacts, which has created contention.

Historic preservation

Today, the National Historic Preservation Act’s  (NHPA) Section 106 is being interpreted by BLM as including both direct and indirect impacts to any historic sites or artifacts that fall under the purview of the Act.

“The interpretation includes not only the direct impacts but also indirect impacts, like view-shed protection, auditory affects or dust, for example,” Boner explains. “We are really concerned about how this section has been applied to private property.”

Boner further explains that, if a private property owner wants to drill for oil and gas on their property, if there is any intersection with federal mineral rights, extensive review is triggered.

“The vast majority of mineral extraction is on private property, but it eventually intersects federal minerals because of changes in technology,” he says. “Today, we aren’t just drilling down, but we also have the ability to drill two-mile laterals. We can’t drill two miles laterally without hitting some federal minerals in Converse County.”

Even if federal minerals comprise less than 10 percent of the project, the entirety of that endeavor is subject to federal regulation.

“If a project intersects with federal minerals, private land then falls under federal rules,” Boner explains. “My constituents are not comfortable having their private resources federalized.”

Continuing discussions

At the same time, Boner also says discussions with BLM have been initiated on the subject.

“There have also been a number of misconceptions about the policy and between landowners and BLM employees,” he describes. “If an entry-level archeologist sees a potential Native American site, there have been cases they say production has to be shut down because that site affects 20 miles in either direction.”

“Part of that problem is that the archeologist doesn’t understand that they can make a recommendation because, ultimately, it’s the BLM field office manager who makes the decision,” Boner continues. “We have had opportunities to facilitate conversations between oil and gas companies, landowners, BLM and others to make sure miscommunications like that are kept to a minimum.”

However, ongoing conversations are necessary to continue to build rapport between parties involved.

Recent meetings

At an Oct. 25 meeting of the Wyoming Legislature’s Federal Natural Resources Management Task Force, BLM and several Native American tribes were present to testify.

“The meeting was good, and it was the first time the Tribes have had a chance to testify,” Boner says. “They are concerned with protecting the sites and making sure they’re preserved.”

He continues, however, “If we weren’t concerned with preserving these resources, we wouldn’t be having this conversation. We appreciate their perspectives, and I think we have more in common than anyone realizes.”

However, changes in technology mean that many of requirements of NHPA are out of date. When the rules were first written, Boner says vertical drilling was the standard for oil and gas extraction.

“This policy doesn’t take into account the improvements in technology we have seen in the past 10 years,” Boner says.

The Wyoming Legislature plans to send a letter to the Department of the Interior laying out their concerns and raise a number of questions that have been expressed by all parties.

Boner comments, “We’re asking BLM to re-assess what the federal nexus means.”

Saige Albert is managing editor of the Wyoming Livestock Roundup. Send comments on this article to

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